FOURTH SECTION

Applications nos. 35365/12 and 69125/12 Nikolay Ivanov SHAHANOV against Bulgaria and Jock PALFREEMAN against Bulgaria lodged on 1 June 2012 and 3 October 2012 respectively

STATEMENT OF FACTS

Application no. 35365/12 was lodged on 1 June 2012 by Mr Nikolay Ivanov Shahanov , a Bulgarian national who was born in 1977. He is serving a sentence in the Plovdiv Prison. The applicant is represented before the Court by Ms S. Stefanova and Mr M. Ekimdjiev , lawyers practising in Plovdiv.

Application no. 69125/12 was lodged on 3 October 2012 by Mr Jock Palfreeman , an Australian national who was born in 1986. He is serving a sentence in the Sofia Prison. The applicant is represented before the Court by Mr. K. Kanev , chairman of the Bulgarian Helsinki Committee, a non-governmental organisation based in Sofia.

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Application no. 35365/12

a) the applicant ’ s complaints to the Ministry of Justice

On 24 and 26 October 2011 the applicant lodged two complaints to the Minister of Justice in which he stated inter alia that X, one of the inmates, had two relatives, Y and Z, among the prison staff; that X was blackmailing and intimidating the other inmates; and that with the help of his relatives X was planning an escape from prison. The applicant requested that the necessary inquiry be made with a view to moving X to a prison where he did not have relatives.

In relation to the applicant ’ s complaints an inquiry was opened and statements were taken from X, other inmates and the prison staff concerned.

In a letter of 28 November 2011 the Director of the General Directorate of Enforcement of Sentences informed the Plovdiv Prison director that the inquiry had not established any irregular contacts between prison staff and inmates. The letter further stated that the prison director should warn all inmates about section 100 (2) (7) of the Enforcement of Sentences and Detention Orders Act, which stipulated that making defamatory statements or false accusations against prison staff or other inmates was a disciplinary offence.

On 29 November 2011 the director of the Plovdiv Prison ordered the confinement of the applicant in an isolation cell for ten days for having made defamatory statements against prison public servants in his complaints of October 2011. The applicant appealed.

In a final decision of 2 December 2011 the Plovdiv District Court upheld the order of 29 November 2011. It referred to the information gathered in the inquiry file and held that the order was lawful and that the conduct of the applicant constituted a failure on his part to abide by the established prison rules, namely the obligation to observe the prohibition to treat in an offensive manner prison staff and other inmates.

b) the monitoring of the applicant ’ s correspondence

The applicant states that his correspondence was repeatedly subject to inspection by the prison authorities. He submits seven outgoing letters, six of which were addressed to his lawyer, which were stamped as monitored by the prison administration.

2. Application no. 69125/12

On 24 May 2012 the applicant lodged a complaint to the director of the Sofia Prison, in which he complained inter alia that on the previous day during visiting hours some visitors ’ personal belongings were stolen from a locker and that the guards on duty behaved in a very rude and improper manner towards the visitors, shouting at them and insulting them for no reason.

On 11 June 2012 a hearing took place before the disciplinary commission. The applicant ’ s request to call witnesses was denied. His request for screening of the video material from the day of the visit showing the guards was also denied.

On 12 June 2012 the director of the Sofia Prison ordered that the applicant be deprived of receiving food parcels for three months. The order stated that the inquiry into the applicant ’ s complaint, including statements from prison staff and video material from the day of the visit, did not confirm his allegations and that his actions constituted defamation and false accusation in breach of section 100 (2) (7) of the Enforcement of Sentences and Detention Orders Act. The applicant appealed before the Director of the General Directorate of Enforcement of Sentences. He simultaneously appealed before the Sofia District Court.

On 6 August 2012 the applicant was shown the response of the Director of the General Directorate of Enforcement of Sentences , in which his appeal was rejected. No copy of the decision was provided to the applicant and he was only required to sign a paper certifying that he was acquainted with the reply.

In a final decision of 19 July 2012 the Sofia District Court terminated the proceedings brought by the applicant, finding that under the applicable regulations appeals against disciplinary punishments of the type of which he complained were not subject to judicial appeal, but could only be appealed before the General Directorate of Enforcement of Sentences.

B. Relevant domestic law

1. Disciplinary punishment of prisoners

On 1 June 2009 the Execution of Sentences Act 1969 was superseded by the new Enforcement of Sentences and Detention Orders Act (“the ESDOA”). Pursuant to section 90 (5) of the ESDOA as in force at the relevant time, prisoners should not be liable to disciplinary punishment because of having made a request or lodged a complaint.

Pursuant to section 100 (2) (7) as in force at the relevant time the making of defamatory statements or false accusations against prison staff or other inmates was a disciplinary offence.

According to section 101 of the ESDOA a prisoner who had committed a disciplinary offence might be punished by, inter alia , deprivation of the right to receive food parcels for up to three months or confinement in an isolation cell for up to fourteen days.

Pursuant to section 111 of the ESDOA the decision ordering disciplinary confinement in an isolation cell could be appealed before the relevant District Court, whose decision was final.

Pursuant to section 110 of the ESDOA the decision ordering disciplinary deprivation of the right to receive food parcels could be appealed before the Director of the General Directorate of Enforcement of Sentences, whose decision was final.

2. Supervision of the prison administration

Pursuant to the ESDOA and the relevant 2010 Implementing Regulation, the Minister of Justice through the General Directorate of Enforcement of Sentences is responsible for managing and supervising prisons. The power of the General Directorate of Enforcement of Sentences includes examining requests, complaints and proposals from prisoners and other citizens.

3. Prisoners ’ correspondence

An overview of the pertinent legislation, applicable at the relevant time, can be found in the Court ’ s decision in the cases of Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, §§ 100-103, 19 February 2013).

COMPLAINTS

1. The two applicants complain that the disciplinary punishments imposed on them on 29 November 2011 and 12 June 2012 respectively constituted violations of their right to respect for their freedom of expression under Article 10 of the Convention.

2. The first applicant complains that the monitoring of his correspondence by the prison authorities ran counter to Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the punishments imposed on the two applicants on 29 November 2011 and 12 June 2012 respectively represent an interference with their right to respect for their private life and/or their freedom of expression within the meaning of Articles 8 and 10 of the Convention? If so, was the interference lawful and justified under these provisions?

The parties are invited to submit all relevant information and documents, including a copy of the decision of the Director of the General Directorate of Enforcement of Sentences in reply to the second applicant ’ s appeal against his disciplinary punishment of 12 June 2012.

2. Has there been an interference with Mr Shahanov ’ s right to respect for his correspondence, enshrined in Article 8 § 1 of the Convention? In particular, does the administration of Plovdiv Prison systematically or occasionally control his outgoing and incoming letters? In what exactly does that control consist? If his letters are indeed intercepted as alleged by him, is that interference with his rights under Article 8 “in accordance with the law” and “necessary in a democratic society” for the achievement of a legitimate aim, as required by paragraph 2 of that Article?